World Criminal Court can’t rule out national interests
Vancouver Courier
July 19, 1998

Every time I come across a ‘Free Tibet’ or ‘Free East Timor’ rally I’m reminded that international justice is at best an abstraction; in practice, a universally enforceable standard of justice doesn’t exist.

If it did, Tibetans, East Timorese, Palestinians and other peoples could appeal their oppression to the United Nations Security Council or the World Court and expect their demands for justice to be heeded.

Problem is, a world body doesn’t work like that—never has. Its ability to intervene in matters like this is entirely subject to the self-interest of its member nations. The Security Council, for example, was set up to keep the world safe from nuclear war, and the price for this was granting vetoes to the five permanent members. Thus China’s veto precludes the council from doing anything to help the Tibetans, and the U.S. veto in defence of Israel perpetuates Palestinian suffering.

In the case of East Timor, defending the East Timorese didn’t fit into America’s geopolitical big picture. As New York Times columnist Anthony Lewis wrote in May: “In December 1975, President Gerald Ford and his secretary of state Henry Kissinger, visited President Suharto in Indonesia. They reacted with a nod and a wink to his plans to seize East Timor.”

When it was pointed out that using American arms aid for aggression violated U.S. law, Mr. Kissinger reportedly told his staff: “Can’t we construe [stopping] a Communist government in the middle of Indonesia as self-defence” (The charge of being communist is at best debatable.)

Atrocities, like the subsequent murder of 200,000 East Timorese, usually happen because they’re allowed to happen. In a contest between the rights of peoples and the rights of nations, the nations win. Since a world court would consist of nations, national interests must prevail there, too.

The 20th century is proof that liberal internationalist promises of world peace—from the League of Nations to the United Nations—are mirages. Nevertheless, a UN committee in Rome has just voted to create a permanent world criminal court to prosecute those who commit war crimes, crimes against humanity and genocide. It would be modelled after the post-World War II Nuremberg and Tokyo war crimes trials.

At this point, all that exists is an agreement to create the court. According to CNN (as this goes to press), 60 nations must ratify the agreement before it can be established. This might prove difficult. The U.S., France, China and Russia were on record as opposing any court having total jurisdiction to prosecute war criminals. (Only Great Britain among the permanent Security Council members favoured the Canadian-sponsored unrestricted court.)

Without such jurisdiction, though, the court will have no value. For example, if America chose to ratify it, which is doubtful, it’s a foregone conclusion that only America’s enemies, or non-sensitive countries, could be charged. Thus, a permanent world court would once again subordinate the rights of people to the rights of states.

Leaving politics aside, the fact that we are only now talking about prosecuting perpetrators of heinous crimes sounds a little opportunistic, especially since those asked to approve the court are not exactly blameless in these matters.

The U.S., through its ambassador to Iraq April Glaspie, did nothing to dissuade Saddam Hussein from attacking Kuwait in 1991. This non-objection amounted to a green light. In this case, could the U.S.’s tacit acquiescence, and punitive sanctions against Iraqi civilians, be grounds for prosecution in a world criminal court’

According to the court’s draft definition of genocide, the answer is yes. The definition covers: “The destruction in whole or in part of a national, ethnic, racial or religious group.” One could also make a case against Hussein because of his war against Iraq’s Kurdish minority, but, on balance, is he more deserving of prosecution than Suharto or presidents Ford and George Bush?

It’s no coincidence that events in Yugoslavia and Rwanda are cited as the reasons why such a permanent court is needed. Though the people responsible for atrocities in these areas deserve to be prosecuted, they have the virtue of not being safe targets. However, after charging them, then what? Do we send the UN version of the Pinkertons after them?

Once the court’s permanent bureaucracy is set up, it will need constant input to justify its existence. Given the court’s absolute refusal to grant amnesty to any accused, does this mean that criminals still living could be tried for past misdeeds? Sounds likely, but don’t expect to see Ariel Sharon charged for his role in facilitating the September 1982 massacre at the Sabra and Shatila refugee camps by Lebanese Phalangists.

In fact one could argue that UN could be charged with genocide. Its ludicrous attempts at ’peacekeeping’ in Bosnia and Rwanda clearly contributed to the human misery.

Finally, the permanent court is presumptuous. In the July 11 Globe and Mail, Anthony Keller observes that prosecution may not be the answer for all people. He cites the example of South Africa’s Truth and Reconciliation Commission which grants amnesty to anyone who testifies. Sometimes a country may choose to make peace with its violent past in its own way. Under a permanent court, will this be allowed?